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2000 DIGILAW 161 (GAU)

Sentu Das @ Dukhya Das v. State of Tripura

2000-04-27

M.L.SINGHAL, P.G.AGARWAL

body2000
P. G. Agarwal, J.— The criminal appeal is directed against the judgment and order passed on 30.7.96 by learned Sessions Judge, West Tripura, Agartala in Sessions Trial No. 166 (WT/A) 1995, whereby the learned Sessions Judge acquitted two accused persons, namely, Safal Das Mihir Chakraborty, but convicted accused Sentu Das alias Dukhya under section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs.5,000. This appeal has been filed by the convict Sentu Das alias Dukhya. 2. The prosecution allegation, in brief, is that on 30.10.1994 at about 5 PM while Pradip Deb Nath was returning home, the accused appellant along with two others attacked him with Dao near the shop of Manmohan Paul, PW 13 at Moloynagar. He was assaulted with Dao and the victim sustained as many as four numbers of cut injuries and died at the spot. 3. In this case there is overwhelming oral and medical evidence to show that on the date of occurrence, the deceased Pradip was assaulted at the place of occurrence with sharp cutting weapons and the said Pradip died as a result of injuries sustained by him. The Doctor, who held the post-mortem found the following injuries on the persons of the deceased - 1. Grievous sharp cutting injury in occipital region extending back of left ear about 6" x 2" x skull depth. 2. Sharp cutting injury on the back of the neck two Nos 4" x 2" x 1". 3. Sharp cutting injury on left thigh 2 Nos. 3" x 2" x ½”. 4. Abrasion on left shoulder 2" x 1.2" x skin depth. In the opinion of the Doctor, the death was due to shock and haemorrhage and the injuries were homicidal it nature. The learned counsel for the appellant has submitted mat the incident of assault and the death of the deceased as a result of the injuries sustained is not disputed; the question is who killed the deceased ? 4. In order to bring home the charge, the prosecution has relied on the evidence of the solitary eye witness, namely, Shri Sushil Deb Nath, PW 17..He has deposed that at the time of occurrence he met Pradip (deceased) in front of the shop of PW 13, Shri Manmohan Paul and Pradip gave a Bidi to him. 4. In order to bring home the charge, the prosecution has relied on the evidence of the solitary eye witness, namely, Shri Sushil Deb Nath, PW 17..He has deposed that at the time of occurrence he met Pradip (deceased) in front of the shop of PW 13, Shri Manmohan Paul and Pradip gave a Bidi to him. Thereafter, he saw the accused Sentu Das alias Dukhya giving Dao blow on the person of the deceased. The accused also threatened him by abusing in filthy languages and asked him to go away from the place otherwise he would also be assaulted by Dao. PW 17, thereafter, ran/to the house of Pradip's father and informed him about the incident. The witness categorically stated that he did not see any other person with the accused. Later on, the witness came to know that Pradip had died. 5. This witness has been cross examined at length by the defence, but nothing has come out to show that he deposed falsely. The learned counsel for the appellant has submitted that this witness did not know the name of the appellant and also did not report the name of the father of the deceased and there was no test identification parade and as such, in this case, the identification of the accused appellant at the trial for the first time can not be relied upon. PW 9 is Shri Ramani Mohan Deb Nath, the father of the deceased. He has deposed that he got information form PW 17, Shri Sushil Deb Nath that his son was killed by the two boys but the said Sushil Deb Nath did not know their names. Thereafter PW 9 came to the place of occurrence and found his son lying dead at the spot. He came to know that one of the accused was Dukhya. PW 17 admits in cross examination that at the time of incident he did not know the name of the accused appellant Dukhya but knew the accused-appellant by face as the appellant used to reside in the same locality. However, after the incident the name of the appellant was known to the witness and accordingly, he had named the accused before c the police and also during his deposition before the Court. However, after the incident the name of the appellant was known to the witness and accordingly, he had named the accused before c the police and also during his deposition before the Court. The defence has not brought out any contradiction to show that the name of the accused appellant was not mentioned by this witness before the police. 6. The learned counsel for the appellant has also challenged the testimony of his witness on the ground that his statement under section 161 CrPC recorded by police after four days and the learned counsel has referred to a decision of this Court in the case of Yazid Ali & another vs. State of Tripura, (1996) 2 GLR 99, wherein it was held - “The non-recording of the statement of the important witnesses at the earliest opportunity, though they were available at the place of occurrence immediately after the occurrence is highly defective and such highly defective investigation can e not go to the prosecution. The witnesses did not come forward and disclose to the Investigating Officer about what they have been immediately after the occurrence or what they knew about the circumstances leading to such commission of offence what they had long after stated in Court. Omissions of witnesses to do so condemn their testimony as an after thought.” 7. In Yazid Ali (supra) the delay was for 43 days, whereas, in the instant case the delay was only for 4 days. This may be a case of negligence on the part of the Investigating Officer, but this in itself can not affect the prosecution or can be sole ground for acquitting the accused or disbelieving the witnesses. In the case of State of Punjab vs. Gurmit Singh & others, 1996 Cri LJ 1728, wherein the Apex Court held that the prosecutrix had no control over the investigating agency and the negligence of an Investigating Officer could not affect the credibility of the statement of the witness. 8. PW 17, Shri Sushil Deb Nath is a day labourer and aged about 40 years. He is an illiterate and unsophisticated person and there is an observation of the Court also that the witness is found very simple in nature. The simplicity of the witness is reflected from his admission that the Rickshaw fare for coming to the Court on the date of trial was paid by PW 9. He is an illiterate and unsophisticated person and there is an observation of the Court also that the witness is found very simple in nature. The simplicity of the witness is reflected from his admission that the Rickshaw fare for coming to the Court on the date of trial was paid by PW 9. The witness has deposed what he has seen and he has not exaggerated anything. Although three accused persons were facing trial but the witness has not said a single word against the two accused persons which goes to show that he was not influenced by the informant or the complainant. The presence of this witness at the place of occurrence and also at the relevant time is established by the shopkeeper, PW13, Shri Manmohan Paul. The occurrence took place in front of his shop and he has deposed that just prior to the occurrence PW 17, Sushil Deb Nath came to his shop to purchase cigarette. Thus, the presence of the witness at the place of occurrence is fully established. Moreover, PW 17 has deposed that the accused-appellant threatened him and asked him to go away otherwise he will be cut. PW 13, the shop keeper corroborates the same as he also heard the above words and thereafter he closed his shop. The evidence of PW 17 as regards the weapons of assault also find support and corroboration from the medical evidence on record. The witness has stated that the deceased was assaulted with Dao by the accused and the Doctor also deposed that the injury was caused by sharp cutting weapon like Dao. 9. In this case admittedly no test identification parade was held. The learned counsel for the appellant has submitted that the identification of the accused at the time of trial can not be accepted as a correct identification and in the case of Dulal Sonowal vs. State of Assam, (1996) 2 GLR 79 (1996 (1) GLJ 243), this Court has held - “It is well established principle of law that identification of the accused at the time of trial can not be accepted as a correct identification and on the basis of such identification it is not safe to convict a person.” 10. The learned Public Prosecutor has submitted that in the instant case just after the occurrence the appellant who was residing in the locality, left the place for good along with him family and in spite of all efforts he could not be apprehended. In this case PW 10 Shri Rakhal Das saw the appellant going towards Renters' colony with his wife and child. Although the witness now denied before the Court that he saw anything in the hand of Dukhya, in his statement before the police, he clearly stated that when he saw the appellant Dukhya, the latter showed him a Dao and asked him to leave the road immediately and out of fear he left the road and fled away. The contradiction has been proved by the prosecution. The Investigating Officer has also deposed that on the night of occurrence itself and on the next few days he tried his best to arrest the appellant, but the appellant Dukhya was found absconding from his house. The learned Public Prosecutor submits that since the date of .occurrence the accused was not seen in the locality and he left the place for good. The accused could not be apprehended till the submission of the charge sheet and he surrendered before the Court later on and as such no test identification parade could be held. This is not a case of stranger, the accused was known to the witnesses including PW 17 as he used to reside in the same locality. Only PW 17 was not knows his name at that time. However, the name of the accused was mentioned in the FIR which was lodged within few hours of the incident and the witnesses also stated his name during investigation and as such there was no question of holding of test identification parade after six months after the filing of the charge sheet. In the case of Jagannath Singh vs. State of Uttar Pradesh, AIR 1971 SC 363 , the Apex Court held that absence of test identification is not necessarily fatal. A similar view was taken in the case of Harbhajan Singh vs. State of J&K, AIR 1975 SC 1814 and the Apex Court observed - “4. In the case of Jagannath Singh vs. State of Uttar Pradesh, AIR 1971 SC 363 , the Apex Court held that absence of test identification is not necessarily fatal. A similar view was taken in the case of Harbhajan Singh vs. State of J&K, AIR 1975 SC 1814 and the Apex Court observed - “4. In view of this corroborative evidence we find no substance in the arguments urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story can not be true.” 11. As stated above, there is sufficient corroboration to the statement of PW 17 in the present case. The learned counsel for the appellant has submitted that evidence of a solitary eye witness can be the basis for conviction only if it is wholly reliable. In support of his submission, learned counsel has referred to a decision of the Apex Court, in the case of Kathi Odhabhai Bumabhai & others vs. State of Gujarat, AIR 1993 SC 1193 and Jayaram Shiva Tagore & others vs. State of Maharastra, AIR 1991 SC 1735 . In Kathi (supra), the evidence of the solitary eye witness was in conflict with the medical evidence and as such the trial Court did not consider it safe to convict accused on his sole testimony and the Apex Court refused to intervene. In Jayaram (supra), the Apex Court observed - “It is true that this Court has held that where the prosecution rests on the sole testimony of an eye witness, the same should be wholly reliable. However, that does not mean that each and every type of infirmity or minor discrepancies would render the evidence of such witness unreliable.” 12. The learned counsel for the appellant has also referred to the observation of the Apex Court, in the case of Ahmed Bin Salam vs. State of Andhra Pradesh, (1999) 4 SCC 111 , but the facts of the above case were altogether different as the accused was not named in the FIR and the name of the accused was introduced in the trial only. In the present case, the name of the accused finds place in the FIR and his name was disclosed during investigation itself. In the present case, the name of the accused finds place in the FIR and his name was disclosed during investigation itself. Courts are concerned with quality and not with quantity of evidence and it is well settled that conviction can be based on the sole evidence of a witness, if it inspires confidence. The learned trial Court relied on the testimony of the eye witness PW 17. On going through the deposition and in view of our foregoing discussions, we also find that PW 17 is a natural, true and reliable witness and his testimony can be accepted without any grain of salt. 13. One Tapas Das was also present at the place of occurrence at the relevant time. Although he was examined by the police, he was not produced during trial. The prosecution has given explanation for his non-production. PW 14 has deposed that Tapas went to Assam and his address is not known. It is, therefore, held that non-examination of Tapas is not fatal. 14. In the result, we find no merit in this appeal. Accordingly, the appeal is dismissed. The accused-appellant is directed to surrender forthwith to serve out the sentence. Send a copy of this order to the learned Session Judge, West Tripura, Agartala for taking necessary action in the matter. Send down the records.